MINNEAPOLIS (CN) — The judge presiding over criminal cases against four former Minneapolis police officers charged in George Floyd’s death vacated a gag order Tuesday afternoon during a contentious hearing in which he addressed several other publicity issues.
“Is there anybody who wants the gag order to stay in place?” Hennepin County Judge Peter Cahill asked. “Speak now or forever hold your peace.”
No one spoke up. Cahill elaborated that he agreed with the former officers’ attorneys that the gag order had unfairly silenced them without an opportunity to respond and that the order could have been drawn more narrowly.
“Finally, and most importantly, the gag order didn’t work,” he said, noting that media outlets had turned to anonymous sources on the case and attorneys had been finding ways to “tiptoe” around the order.
The judge also declined to hold Minnesota Attorney General Keith Ellison or his Deputy Chief of Staff John Stiles in contempt of court for a press release announcing the addition of four prominent attorneys to the prosecution team pro bono.
Attorneys Earl Gray, representing former officer Thomas Lane, and Eric Paule, representing Derek Chauvin, filed motions for contempt against Ellison after Stiles issued the press release, with Gray going as far as to call for Ellison to be thrown in jail.
Cahill gave Gray little time to speak on the matter Tuesday, instead focusing his questions on Paule.
“When there’s a court order, the lawyer’s duty is to follow it. And Mr. Ellison is a lawyer. He is more than a lawyer. He is attorney general of the state of Minnesota,” Paule said. “To me, the brazenness and the hubris to go and issue a press statement, four days after the court issued a gag order, was unfathomable.”
Cahill asked Paule if he thought the release was an attempt to intimidate the judiciary. When Paule responded in the affirmative, the judge expressed skepticism.
“Mr. Paule, I respect your argument, but I don’t think it was an attempt to intimidate the court. In fact, I think it was… fairly innocuous,” he said.
The ex-officers’ attorneys and a coalition of news outlets found common cause in asking the judge to toss the gag order.
Gray, Paule and the attorneys representing former officers Tou Thao and J. Alexander Kueng all made filings opposing the order shortly after it was put in place, and the media coalition – comprised of local outlets along with national news organizations such as CNN and the publishers of the Wall Street Journal – followed suit shortly afterward.
Ellison’s office, which is prosecuting the case, has maintained what Assistant Attorney General Matthew Frank called a “tepid” defense of the gag order. Frank filed a response to the motions to overturn it and for contempt late Monday afternoon.
“The state does not object to a narrowly tailored gag order,” Frank wrote, adding a request that the court review and make a finding on the proper procedures for publication of body-camera footage.
The motions for contempt, he wrote, were baseless.
“The fact that these attorneys are working on a pro bono basis says absolutely nothing about the merits of the underlying matters,” the brief states.
The media coalition and defendants also pushed for a wider release of Lane and Kueng’s body camera footage, which Gray filed as an exhibit July 7 in support of a motion to dismiss.
Media coalition attorney Leita Walker advocated at Tuesday’s hearing for the release of the footage, which was viewed by reporters and members of the public last week by reservation.
“I don’t mean to be flip with my phrasing here, but the cat is out of the bag. We have seen it,” she told Cahill.
The widespread dissemination of bystander video of Floyd’s Memorial Day arrest meant that any jury pool would likely have seen some version of the event, she said, and the publication of transcripts and reporters’ accounts of the video meant that keeping the video restricted wasn’t stopping that information from getting out either.
“There’s going to be prejudice to the potential jurors. It’s happened, your honor, and it’s been happening for the last several weeks,” Walker said.
Gray came at the same objective from a different angle. He claimed that the media had completely ignored what he saw in the video – namely, that Floyd was stuffing counterfeit bills in the seat of the car he was sitting in before Lane pulled a gun on him, and that Floyd had swallowed drugs on the scene.
“The media is substantially unfair against my client. And I feel that the court has seen this,” he said.
He also cited an editorial published in the Minneapolis Star Tribune on “excited delirium,” which Lane had expressed concerns about at the scene. The editorial disputed that such a condition exists, and Gray suggested it demonstrated the paper’s opinion on his client’s case.
Frank took issue with that characterization, calling it an attempt by Gray to conduct trial by media.
“If these things were coming out in court, during trial, there would be testimony explaining them, not an attorney standing up and saying, ‘Here’s what Mr. Floyd was doing,’” the state’s attorney said.
While the gag order and access to the exhibits were the procedural focus of the hearing, emotions were highest when Cahill asked the media coalition’s attorney about the inclusion of his state legislators on a list of public officials potentially impacted under the gag order.
“I sense, counsel, that your media coalition is trying to dox me, personally,” Cahill said to Walker, his voice rising as he referred to the act of publishing someone’s private identifying information online.
The districts of the two state legislators named, Democratic Representative Ginny Klevorn and Republican Senator Paul Anderson, include Cahill’s home in the northwestern Minneapolis suburb of Plymouth, he said. Neither represents any part of Minneapolis proper.
“Reading between the lines, I saw no reason other than that why they would pick these two specific legislators,” he continued. “Where I’m from, that’s a threat.”
Cahill made reference to a Sunday attack on the New Jersey home of U.S. District Judge Esther Salas, in which a man dressed as a FedEx driver killed Salas’ son and shot her husband. Law enforcement identified attorney Roy Den Hollander as the primary suspect in the case shortly after Den Hollander’s death, apparently from a self-inflicted gunshot wound.
Walker denied any intent to dox Cahill and apologized for causing him distress. The list, she said, had been compiled by one of her associates in Washington and added without further question to the memorandum supporting her motion.
Not completely satisfied, Cahill let Walker off the hook on that line of questioning for the remainder of the hearing. He demanded, however, a supplemental brief explaining the coalition’s reasons for listing Klevorn and Anderson.